Wisconsin abomination

OMG what has happened in Wisconsin is just an utter abomination.  This is truly, truly how democracies die.  A Republican legislative majority, entrenched by an extreme gerrymander (quick digression “Democrats also won roughly 53 percent of the statewide vote for Assembly seats — securing 1,306,878 votes to 1,103,505…Republicans retained roughly the same overwhelming majority — 63 seats to 36 — that they have held since they redrew the maps in 2011) has insisted on holding an in-person election at a super-clear threat to the public health and a gigantic threat to Wisonsin citizens’ right to vote.  And, then, 5 Republican Supreme Court justices (and, yes, it is absolutely appropriate to describe the justices by their partisanship in this case) upheld on such pathetic and flimsy reasoning most any 1L student could surely shoot it down.  

As law professor Leah Littman writes, this is, indeed, “a terrible sign for November”

It’s obvious how voting in public amid a pandemic is not compatible with safety. The federal government’s health experts have recommended that people stay home and keep their distance from one another. Voters would have to disregard that lifesaving guidance in order to cast their vote. That is why experts and advocates have strongly recommended that the United States move to a system of voting by mail for the upcoming general election. Doing so would ensure that people can exercise their franchise and that America remains a representative democracy without threatening millions of lives…

The Court did little to explain its decision. It first maintained that the residents never requested the extension (though the dissent referenced a portion of the case transcript in which they did). The Court then cited a prior decision, Purcell v. Gonzalez, that reasoned that courts should be reticent to disturb election procedures close to the date of an election. But that principle is based on the idea that elections should not be riddled with last-minute chaos. It is hardly applicable to the circumstances that the country is facing now—namely, an election that is already riddled with the sweeping, last-minute chaos resulting from the coronavirus. [bold is mine]

Who will benefit from the Court’s decision and who will be hurt—and possibly killed—by it is entirely predictable. The Court’s decision will depress voter turnout in the all-important judicial elections. The president recently said out loud what Republican voting strategists have long seemed to believe: Lower voter turnout benefits Republicans. With higher levels of voting, as Trump put it, “you’d never have a Republican elected in this country again.” …

The Court’s decision is an ominous harbinger for what the Court might allow in November in the general election. Imagine, for example, that states do not allow absentee voting or voting by mail even though the coronavirus remains a serious threat to public health. Imagine also that the president, continuing to minimize the threat posed by the virus, tells his supporters that they should go out and vote anyway. Monday’s decision suggests that the Supreme Court wouldn’t care.

The Court’s indifference to Wisconsin voters is brazenly ironic. Before it issued the Wisconsin order, the Court indefinitely postponed all of the cases that were originally scheduled to be heard in March or April of this year, including a major argument over whether the House of Representatives can subpoena the president’s financial records. In the order explaining its decision to delay the hearings, the Court cited the historic and unprecedented nature of the coronavirus and the threat it poses. But while the Court is more than happy to make accommodations for the sake of the health of its own justices and members of the Supreme Court bar, it refuses to do the same for voters who are merely trying to participate in democracy.

Scott Lemieux:

Say what you will about “some lives matter, and some don’t,” it’s an ethos. And if the Court is willing to do this just to help their party be insulated from democratic elections in one state, imagine what they’ll be willing to do in presidential and Senate elections where their ability to maintain control of the Court itself is at stake…

Meanwhile, since we could all use some comic relief, here are some thoughts on the matter from Illya “The Senate Should Refuse to Confirm All of Hillary Clinton’s Judicial Nominees” Shapiro:

“It’s unfortunate that both the Wisconsin and U.S. Supreme Court rulings broke down the way they did, because it lends credence to the perception that law is increasingly no different than politics,” said Ilya Shapiro, a lawyer with the Cato Institute, the libertarian group. “But the decisions weren’t partisan.”

“Yes, what an unfortunate coincidence that all of these voting rights decisions that favor Republicans break strictly along partisan lines, leading to the impression that they are partisan, which they totally are not even they don’t even make a pretense of being constitutional law. Pull my finger.” This is the kind of “intellectual” environment in which Richard Epstein can look like a thought leader.


It’s worth noting that this was not an easy case. In normal circumstances, it might have been correct to overturn the district court decision. But these aren’t normal circumstances, and what’s disturbing about the majority ruling from the Supreme Court’s Republicans is that it barely even mentions those circumstances. It says instead that the case hinges on a “narrow, technical” question about the absentee ballot process. At the very end of the opinion, here is the sole reference to the COVID-19 pandemic:

The Court’s decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.

That’s it. In the main body of the opinion, you would never learn that a deadly pandemic even existed, let alone that it was the driving motivation of the district court’s decision.

This is cowardly. If you want to make a case that the law is the law and it needs to be followed even in the middle of a destructive plague, then go ahead. But at the very least, you need to have the integrity to make the case. You need to be willing to say forthrightly that legal technicalities need to be followed even if they will either (a) deprive thousands of people of their votes or (b) drive them to the polls, where they run the risk of contracting a deadly disease. If you can’t quite find the words to say that out loud, then you need to rethink your reasoning…

The Supreme Court decision, by contrast, avoids the facts on the ground entirely. If this were nothing more than a snowstorm or a transit strike, maybe that would be OK. But when it’s the deadliest pandemic in over a hundred years? That’s a little different.

Don’t think this is how democracies die?  Read up.

On the bright side.  I’m not sure enough national Democratic leaders fully appreciated the lengths that Republicans were willing to go to in order to steal elections. And have it endorsed by the Supreme Court.  I think maybe they are now.  And Republicans, fearing a shrinking economy leading to electoral doom in November are going to be the ones really wanting more relief bills.  And Democrats absolutely, positively, have to insist that the laws are in place to avoid travesties like this in November.  

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